United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY United States District Judge
the Court considers Magistrate Judge Karoline
Mehalchick's Report and Recommendation (Doc. 58)
concerning Defendant Correctional Officer (“C/O”)
Clark's Motion to Dismiss (Doc. 48). Magistrate Judge
Mehalchick concludes that Plaintiff, who was an inmate at the
Dauphin County Prison during the relevant time period and is
now incarcerated at FCI-Beckley in West Virginia, has
adequately pled Eighth Amendment claims against Defendant
Lexlucski for excessive force and Defendants MacDonald and
Clark for failure to intervene but has failed to state a
claim on other matters alleged. (Doc. 58 at 18.) Therefore,
she recommends that the motion be granted in part and denied
Clark objects to the Report and Recommendation on the basis
that Plaintiff cannot seek damages on his excessive force
claim because he has not pled more-than-de-minimis physical
injury. (Docs. 59, 60.) Plaintiff did not respond to
Defendant's objection and the time for doing so has
passed. Therefore, this matter is ripe for disposition.
Defendant does not object to the background information
contained in the Report and Recommendation, the Court adopts
the facts as set out by Magistrate Judge Mehalchick.
The facts as alleged by Goenaga are as follows: Around 2:45
a.m. on September 12, 2014, Lt. Lexlucski was summoned in
response to an incident in Goenaga's cell. (Doc. 39, at
2). Lt. Lexlucski called Sgt. Parson to take Goenaga to
medical, whose knee had “popped out of place.”
(Doc. 39, at 3). Following treatment, which did not include
pain medication, Goenaga was sent back to his cell. (Doc. 39,
at 3). Goenaga returned to medical around 3:40 a.m. for
regular insulin, after which he was handcuffed for
transportation to the Special Housing Unit. (Doc. 39, at 3).
Due to Goenaga's injured knee, Sgt. Parson told C/O's
MacDonald and Clark to use a wheelchair for transportation.
(Doc. 39, at 3). They refused, due to frustrations with the
timing and forced Goenaga to walk on his injured knee. (Doc.
39, at 3). When Goenaga could not keep up, he was dragged.
(Doc. 39, at 4). Upon the command of Lt. Lexlucski, C/O's
dropped Goenaga to the ground, placed their knees in his
back, and sprayed mace in Goenaga's face. (Doc. 39, at
4-5). Goenaga also states the officers slapped him in the
back of the head. (Doc. 39, at 5). Goenaga remained in
Special Housing for 15 days prior to his return to general
population (Doc. 39, at 6).
(Doc. 58 at 1-2.) Plaintiff's Amended Complaint clarifies
that it was Defendant Lexlucski who maced him twice while
Defendants MacDonald and Clark held him down and failed to
intervene. (Doc.39 at 4-5.) Plaintiff also states that he was
making no attempts to resist commands and being maced
prevented him from breathing. (Id.) He says that he
was maced the second time after he “began to beg the
lieutenant to please stop hurting him because he wasn't
resisting and asked the lieutenant why he was macing him with
pepper spray.” (Id. at 5.) Plaintiff adds that
Defendant Clark was then “told to get the black chair.
When he got back with the black chair plaintiff was strapped
into the chair for no reason and removed from
population.” (Id.) When he was in the elevator
strapped into the chair, Plaintiff states that “he was
slapped several times in the head for waking them up from
their rest time.” (Id.)
Report and Recommendation sets out the following procedural
Goenaga filed suit again C/O's MacDonald and Clark, as
well as Lt. Lexlucski and Dauphin County Prison Warden
Dominic DeRose. (Doc. 1). Over two years later, only
Defendants DeRose and Clark have been served. Defendant
DeRose filed a motion to dismiss on April 7, 2015. (Doc. 18;
Doc. 22). The Court granted in part and denied in part
DeRose's motion. (Doc. 26, at 20). The Court found
Goenaga adequately pled  Eighth Amendment excessive force
claims against Defendant Lexlucski and Eighth Amendment
failure-to-intervene claims against Defendant MacDonald.
(Doc. 26, at 20). The Court recommended dismissal of:
Defendant DeRose for lack of personal involvement (Doc. 26,
at 9); claims of deliberate indifference related to allegedly
inadequate dietary provisions (Doc. 26, at 11); and claims
grounded in Goenaga's placement in the Special Housing
Unit (Doc. 26, at 13). The Court declined dismissal on the
grounds that Goenaga failed to exhaust and that the
Defendants were entitled to qualified immunity as they did
not violate any constitutional rights. (Doc. 26, at 8; 17).
Following issuance of the Order accompanying these holdings,
Goenaga filed an amended complaint. (Doc. 39).
Defendant Clark returned waiver of service on August 4, 2016,
filing the instant motion to dismiss on August 26, 2016.
(Doc. 46; Doc. 48). Defendant Clark asserts Goenaga's
complaint: (1) does not meet the pleading standards of Rule
8; (2) alleged only de minimis physical injuries; (3) does
not allege personal involvement to all Defendants; (4) does
not allege deliberate indifference; (5) does not establish
any Constitutional violation by Goenaga's placement in
prison; (6) does not establish supervisory liability; (7)
does not show the Defendants violated Goenaga's rights;
(8) fails for Goenaga's admitted failure to exhaust; and
(9) that exhaustion is not excused by any imminent danger.
Defendant Clark filed his brief in support on September 16,
2016. (Doc. 51). Having received no brief in opposition, the
Court entered an Order extending the deadline for
Goenaga's opposition to November 8, 2016. (Doc. 52). On
November 10, 2016, Goenaga moved for another extension and to
obtain copies of the Defendant's motion. (Doc. 53). The
Court granted Goenaga's motion, extending the deadline
for a brief in opposition to December 2, 2016. (Doc. 54). On
December 6, 2016, Goenaga informed the Court that he had not
received copies of the motion. (Doc. 55). In response, the
Court extended the deadline again to January 31, 2017. (Doc.
56). This deadline passed without communication from Goenaga.
Accordingly, per the terms of the Order, the Court considers
the motion to dismiss unopposed and therefor ripe for review.
(Doc. 58 at 2-3.)
Standard of Review
Report and Recommendation
magistrate judge makes a finding or ruling on a motion or
issue, his determination should become that of the court
unless objections are filed. See Thomas v. Arn, 474
U.S. 140, 150-53 (1985). When objections are filed to a
magistrate judge's Report and Recommendation, the
district judge makes a de novo review of those
portions of the report or specified proposed findings or
recommendations to which objection is made. 28 U.S.C. §
636(b)(1); Cippolone v. Liggett Group, Inc., 822
F.2d 335, 340 (3d Cir. 1987), cert. denied, 484 U.S.
976 (1987). To warrant de novo review, the
objections must be both timely and specific. Goney v.
Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The court may
accept, reject or modify, in whole or in ...